Police v Taito [2016] WSSC 184 (15 September 2016)

THE SUPREME COURT OF SAMOA
Police v Taito [2016] WSSC 184

Case name:	Police v Taito
Citation:	[2016] WSSC 184
Decision date:	15 September 2016
Parties:	POLICE (Prosecution) SPENCER TULAFASA TAITO male of Leauvaa (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE TAFAOIMALO TUALA WARREN
On appeal from:
Order:	The accused is convicted of each charge of sexual connection and sentenced to 6 months imprisonment. These are to be served concurrently. For each charge of indecent act, the accused is convicted and sentenced to 4 months imprisonment. These are concurrent to the sexual connection sentences and to each other. All sentences are concurrent. Any time spent in custody is to be deducted. The names of the victim, her family and her village are suppressed.
Representation:	L. Sio for Prosecution Accused Unrepresented
Catchwords:	two of sexual connection with a young person under 16 years, indecent act
Words and phrases:
Legislation cited:	Crimes Act 2013 section 59(1), section 59(3) (5)
Cases cited:	Police v Imoa [2014] WSSC 144 Police v Sivao [2016] WSSC 29 Police v Lunai [2015] WSSC 176 Police v Fetu [2013] WSSC 105 (9 September 2013)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SPENCER TULAFASA TAITO male of Leauvaa
Accused

Counsel:
L. Sio for Prosecution
Accused Unrepresented

Sentence: 15 September 2016

S E N T E N C E
THE NAMES OF THE VICTIM, HER FAMILY AND HER VILLAGE ARE SUPPRESSED.

The charge

1. The accused appears for sentence on six charges, two of sexual connection with a young person under 16 years pursuant to section 59(1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and four charges of indecent act with or on a young person pursuant to section 59(3) (5) Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.
2. He pleaded guilty to the charges on 22 August 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 24 July 2016, around 10 pm, the victim went to the home of the accused and woke him up. The accused told the victim to sit across from him and the pair started kissing. The accused then told the victim to lie on the mat and when she had, the accused then removed the victim’s shorts and panty. They then had sexual intercourse.
4. On 28 July 2016 around 1 am, the victim walked over to the home of the accused again and woke up the accused. She lay on the mattress beside the accused. The accused removed her shorts and panty, removed his own shorts and the pair started kissing. The accused rubbed his penis on the victim’s vagina. They did not have sexual intercourse but instead went to the home of the parents of the accused around 6 am. Upon arrival, the mother of the accused asked the victim if she wanted to marry her son the accused. The victim said yes.
5. The accused then went somewhere and the sister of the accused chased the victim out of their home. She went and waited under a banana tree nearby until the accused arrived home later that evening. They then spent the night at a house next to his parent’s home.
6. That night, both the accused and victim removed their clothes. The accused sucked the victim’s breasts and kissed her. The pair then had sexual intercourse.
7. The Police arrived a few hours later as the victim’s parents were looking for her.
8. The accused and the victim are neighbours and were in a boyfriend-girlfriend relationship.

The accused

9. As shown in the pre-sentence report, the accused is 34 years old, single and lives with his maternal family at Leauvaa. He works on his family’s peanut farm.
10. His mother told probation that the accused is a reliable person. She relies on his peanut plantation for their livelihood.
11. There are testimonials from his family matai, his village mayor and Bishop in his favour. All say that he is a kind and honest person who renders service to his family, village and church.
12. He says about the offending that he had been in a relationship with the victim for about two months. He is in love with her and she wants to marry him.
13. There has been reconciliation between the family of the accused and the victim’s family. The family matai and mother of the victim confirm this reconciliation and ask for the Court’s leniency.
14. He has expressed his remorse to the Court.
15. He is a first offender.

The victim

16. There is no victim impact report given to the Court. In the summary of facts it is clear that the victim is 14 years old and no longer attends school but stays home with her parents.

Aggravating features of the offending

17. The first aggravating feature is that there is a 20 year age disparity between the accused and the victim. As such the accused is much older and more mature than the victim, and he took advantage of this.
18. The second aggravating feature is the vulnerability of the victim. She is 14 years old.

Mitigating Factors

19. His good character according to his mother, family matai, village mayor and Bishop is taken into account in his favour and his clean record.
20. The reconciliation between the families is taken into account.
21. His early guilty plea to the charges is a mitigating factor.

Discussion

22. The Court’s attitude to this kind of offence is well established.
23. Nelson J in Police v Imoa [2014] WSSC 144, said that ‘the law is there to protect young girls from mature men taking advantage of them. It is also there to protect young girls from making rash decisions and from getting into trouble’.
24. In Police v Sivao [2016] WSSC 29, Vaai J said ‘ the purpose of the law ...is to protect young girls from older men and from their own urges until they are old enough to know better and make rational judgments for themselves.
25. The sentences imposed by the Court have usually been custodial. Tuatagaloa J in Police v Lunai [2015] WSSC 176 said that sentences of the Court have usually been custodial where the age gap between the accused and victim is 10 + years.
26. The sexual intercourse in this case may have been consensual as the accused and the victim were in a relationship, but this is not a defence or a mitigating factor. It remains what it is, sexual intercourse with an underage girl. As Nelson J said in Police v Fetu [2013] WSSC 105 (9 September 2013), this is a classic case of a young immature female making wrong decisions about her sexual partners. It is the very sort of young female that the law of carnal knowledge is designed to protect.
27. In this case, even if the victim had instigated the sexual connection by going to the home of the accused, the accused is a grown man of 35 years who should have known better and sent her home or informed her family as he was well aware she was 14 years old.
28. Deterrence is needed in this case so that a message is sent to grown men that this type of behaviour is unacceptable.
29. Prosecution has submitted that a term of imprisonment is appropriate in this case. Probation has recommended a community based sentence.
30. Here the Court will impose an initial sentence on sexual conduct charges and make concurrent sentences on the indecent act charges. This is in line with the totality approach where the aggregate sentence should be just and appropriate.
31. Having taken into account the aggravating features of the offending, I find that a custodial sentence is appropriate in this case. I start with the lead offences of sexual connection. The maximum penalty for each of these two charges is 10 years imprisonment. However the starting point for each charge of sexual connection in this case is 2 years imprisonment. I deduct 6 months for his otherwise good conduct as evident in his clean record and the testimonials in his favour, I deduct another 6 months for the reconciliation between the families. I deduct 6 months finally for his early guilty pleas.

The result

32. The accused is convicted of each charge of sexual connection and sentenced to 6 months imprisonment. These are to be served concurrently.
33. For each charge of indecent act, the accused is convicted and sentenced to 4 months imprisonment. These are concurrent to the sexual connection sentences and to each other.
34. All sentences are concurrent.
35. Any time spent in custody is to be deducted.
36. The names of the victim, her family and her village are suppressed.
    

JUSTICE TAFAOIMALO TUALA-WARREN